The Scottish Government’s consultation paper on protective costs orders has re-invigorated the debate on access to environmental justice (for example, Friends of the Earth Scotland’s Petition to the Scottish Parliament). I attended a stimulating think tank on the topic held by Strathclyde University.
It’s not all about planning cases – the Roadsense case relates to roads legislation. The typical scenario, however, is about planning – a private individual has objected to a development, but the planning authority has decided to grant planning permission. Dissatisfied, the individual challenges the decision in the courts.
The problem is that the Court of Session rarely quashes planning decisions. The law is quite clear: it is not for the judges to interfere with the merits of the decision, only to ensure that the decision-maker has complied with the law.
There is a risk that improving access to the courts raises expectations, which cannot be fulfilled because the grounds for legal challenge are narrow in scope. Reading the recent Dovesdale incinerator case, it felt as though the very narrow grounds of legal challenge were an awkward attempt to shoehorn the objector’s concerns into a legal case.
This leads us back to third party rights of appeal – if the scope of legal challenges is too restrictive, then third parties could be given a new right to challenge the merits of the decision, possibly in front of a Scottish Government reporter. TPRA was firmly rejected by the Scottish Government during the planning reform debate, with increased public consultation/ participation instead.
As with many other issues in the planning system, a balance has to be struck, which involves hard choices. It is important that there are procedures for decisions to be scrutinised. However, that inevitably delays development, and imposes cost on developers. The SPP sums this up well:
It is essential to recognise that planning issues, by their very nature, will often bring differing interests into opposition and disagreement and the resolution of those issues will inevitably disappoint some parties. The planning system cannot satisfy all interests all of the time. It should, however, enable speedy decision making in ways which are transparent and demonstrably fair.
On March 5, 2012